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- Whether sentencing courts should have regard to current sentencing practices throughout the Commonwealth – R v Pham  HCA 39
Updated 1 December 2015
Whether sentencing courts should have regard to current sentencing practices throughout the Commonwealth
Criminal law – Sentencing – Federal offences – Consistency – Current sentencing practices – Whether sentencing courts to have regard to current sentencing practices throughout Commonwealth
Criminal law – Appeals against sentence – Manifest excess or inadequacy – Sentencing statistics – Drug importation offences – Whether permissible to assess current sentencing practices by statistical analysis of correlation between sentence and quantity of drug imported
Precedent – Intermediate appellate courts – Use of sentencing decisions of intermediate appellate courts
The issue in the case was whether, when considering an appeal with respect to a federal offence, the Victorian Court of Appeal was wrong to say that a sentence was erroneous based solely on an examination of previous Victorian cases or whether an examination of all intermediate appeal cases, both from Victoria and elsewhere was required.
Facts: The appellant, Pham, was arrested at Melbourne airport when he arrived from Vietnam in possession of more than half a kilogram of pure heroin. Following a plea of guilty, he was sentenced to 8 years and 6 months imprisonment with a non-parole period of 6 years. In considering the appeal, Maxwell P in the Court of Appeal (Vic) said that “the [respondent] pleaded guilty in the reasonable expectation that he would be sentenced in accordance with current sentencing practices in Victorian courts”. Maxwell P conducted an examination of Victorian cases and cases from other jurisdictions and concluded that penalties imposed in Victoria were significantly more lenient than those imposed in other jurisdictions. On that basis, his Honour concluded that the sentence imposed by the sentencing judge was erroneous and required intervention by the Court.
The other two judges of appeal provided separate judgments but each agreed that the appeal should essentially be considered by comparing sentences imposed on similar offenders in Victoria.
Held: The plurality in the High Court rejected the approach of Maxwell P to the appeal. The plurality emphasised that sentences for federal offences required a consistent approach be applied across the jurisdiction which is Australia as a whole. The plurality noted that: “…where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.” The plurality provided the following 7 guiding principles to be applied to federal sentencing at :
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
Comment: The principles quoted are helpful and authoritative. However, some caution should be applied with respect to point (5). The minority judgment of Bell and Gageler JJ quoted from the decision of Hili v The Queen (2010) 242 CLR 520; 204 A Crim R 434;  HCA 45 that post-dated the decision of Tak Fat Wong v The Queen (2001) 207 CLR 584; 76 ALJR 79;  HCA 64 referred to by the plurality to support point (5) and was a decision of 6 members of the Court. In Hili at  the Court said, “Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were.” (emphasis added by Bell and Gageler JJ). Their honours further noted that “that statistical material showing the pattern of past sentences for an offence may serve as a yardstick by which the sentencer assesses a proposed sentence and the appellate court assesses a challenge of manifest inadequacy or excess” (see Pham at ).
The approach by Bell and Gageler JJ is consistent with previous decisions of the High Court, see for example Barbaro v The Queen (2014) 253 CLR 58; 236 A Crim R 116;  HCA 2 at . Based on the analysis provided by Bell and Gageler JJ, a submission to the effect that statistics based on judgments of other sentences is entirely unhelpful to the sentencing proceedings should be rejected. Statistics and other court decisions might well assist in establishing an appropriate range of sentence and ought to continue to be used as a guide to the ultimate sentence to be imposed. As noted in the 7 principles outlined in the judgment of the plurality, statistics and earlier judgments of equivalent jurisdictions will only be one of the many factors considered by a sentencing court before reaching a decision.
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